Inheritance Without Instructions

Lou Schwartz, Esq., Managing Member, Schwartz & Associates

Trusts and estates law assumes control. Someone decides. Someone acts. Someone bears responsibility. Modern assets disrupt that assumption.

Today, estates routinely include automated investment accounts, algorithmically managed portfolios, and digital platforms that continue to operate without human intervention. These systems execute transactions according to rules set long before death or incapacity. Often, the governing instruments say nothing about them.

Disputes arise when outcomes surprise beneficiaries. Assets are liquidated. Positions are rebalanced. Value shifts without direction from a trustee or executor. The question becomes whether inaction was a breach or whether delegation was ever authorized.

Traditional doctrine draws a line between ministerial delegation and discretionary judgment. Automated systems blur that line. When an algorithm reallocates assets or enforces contractual terms, it is unclear whether it is exercising discretion or implementing policy.

Courts are increasingly asked to resolve these disputes by reconstructing intent from silence. That is an uncomfortable exercise. Estate documents drafted before widespread automation rarely address ongoing digital control.

As these cases mature, fiduciaries will be judged not only on what they did, but on what they allowed systems to do. The law will need to clarify whether trustees have an affirmative duty to supervise automated assets and when failure to intervene constitutes breach.

The next wave of trust litigation will not be driven by bad actors. It will be driven by unanticipated autonomy.